18 June 2015

Does repeal of the Human Rights Act require Sewel consent?

That's one of the critical questions in the legal and political battle against Tory plans to abolish the Human Rights Act.

Iain Jamieson, Professor Christine Bell and yours truly have argued that "axing the Act" would and should require Holyrood's consent under the Sewel convention -- which could be withheld. Hitherto, the UK government has been keeping its legal cards close to its chest. Gove has been mum. The Secretary of State for Scotland turned in a car-crash interview on Radio Scotland shortly after the election, in which he showed no awareness whatever of the devolved implications of his government's repeal plans. Little has been said since. Until last Monday, that is.

Responding to Joanna Cherry's human rights amendment to the Scotland Bill in Westminster, Deputy Leader of the House, Therese Coffey, responded for the government. Significantly, she claimed that the Human Rights Act should be seen as a matter reserved to Westminster, invoking precisely the logic I warned about on Monday. She told MPs:

"The hon. and learned Member for Edinburgh South West referred in particular to amendment 67. Indeed, the right hon. Member for Orkney and Shetland said that this matter should be consistent across the UK, reinforcing that this is a reserved for the UK Parliament and not a devolved matter. The hon. and learned Lady said that the UK Government had not been clear on some aspects of this matter. I believe that the Prime Minister has been clear at this Dispatch Box. Amendment 67 would amend the Bill such that paragraph 1 of schedule 4 to the 1998 Act would be modified to remove the Human Rights Act 1998 from the list of legislation the Scottish Parliament cannot modify, otherwise known as the “protected enactments”.The House will be aware that the Government outlined their proposal to reform and modernise our human rights framework by replacing the Human Rights Act with a Bill of Rights. That was reinforced today by my right hon. Friend the Prime Minister at the celebration of the 800th anniversary of Magna Carta. Of course, we are aware of the possible devolution implications of reform and we can engage with the devolved Administrations as we develop the proposals. As the Secretary of State said, the Sewel convention, as intended by Lord Sewel, has been placed in the Bill, but this Parliament remains sovereign. The Government are certainly committed to human rights and, as I indicated earlier, we will consider the devolution implications."

Pete Wishart intervened, grouchily (and a bit inaccurately):

"That is just not good enough. These are fundamental and profound issues for the Scottish Parliament. We are dependent on the Human Rights Act for the competence of the Parliament. Will the Minister vow to go forward, make sure this is looked at properly, and come back with a more suitable and substantial response?"

And Coffey replied:

"The hon. Gentleman is right that these are important matters, and I can assure him that my right hon. Friend the Secretary of State is engaging with the devolved Administration as we develop the proposals. It has to be said, however, that the amendment is squarely outwith the Smith commission agreement, which contained no proposals in this respect. The hon. and learned Member for Edinburgh South West herself said it was not directly a matter for the Scottish Parliament."

In a nutshell, this suggests the Westminster government will argue that by dint of its inclusion as a protected enactment in Schedule 4 of the Scotland Act, the Human Rights Act is a reserved matter and Holyrood's consent is not required for the Tory majority to repeal the Act north and south of the border. Coffey's answer did not address the arguably more important question - will consent be required to enact a British Bill of Rights?

4 comments
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My ignorance is no doubt showing here, but I can't help but wonder. Since human rights is a devolved matter, would it not be possible for the Scottish Parliament to pass an Act which mirrors the Human Rights Act 1998 in all matters relating to devolved competence, in light of (or indeed, in anticipation of) a repeal? Clearly, such an Act would not offer the full blooded protection of the current Human Rights Act if it cannot be applied in respect of reserved matters, but passing such an Act would surely do a great deal to politically harm the notion that whatever Westminster cooks up is really a 'British Bill of Rights'. It would certainly exacerbate any constitutional crisis if those north of the Tweed were imbued with directly enforceable human rights, while those south of it were dependent on citizenship; is this constitutionally illiterate or, perhaps, something for the Scottish Parliament to consider?

Ah, excellent! It would be lovely to see Holyrood start to talk about, as you suggested, the human rights of the child or the like as the repeal debate rages on down south. That would be a real example of the divergence between Edinburgh and London in action...

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